The Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) Regulations 2003

Welsh Statutory Instruments

2003 No. 2288 (W.227)

FOOD, WALES

The Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) Regulations 2003

Made

5th September 2003

Coming into force

6th September 2003

The National Assembly for Wales, being designated M1 for the purposes of section 2(2) of the European Communities Act 1972 M2 in relation to the common agricultural policy of the European Community, in exercise of the powers conferred on it by that section, makes the following Regulations:

Marginal Citations

M1 S.I. 1999/2788.

M2 1972 c. 68.

Title, commencement and application E+W

1.—(1) These Regulations may be cited as the Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) Regulations 2003 and shall come into force on 6th September 2003.

(2) These Regulations apply to Wales only.

Interpretation E+W

2.—(1) In these Regulations —

“the Act” (“y Ddeddf”) means the Food Safety Act 1990 M3 ;

“CN code number” (“Rhif y cod CN”) means a code number of the combined nomenclature established by Council Regulation (EEC) No. 2658/87 on the tariff and statistical nomenclature and on the Common Customs tariff M4 ;

[F1 “the Commission Decision” (“Penderfyniad y Comisiwn”) means Commission Decision 2005/85/EC imposing special conditions on the import of pistachios and certain products derived from pistachios originating in, or consigned from Iran;]

“Iranian pistachios” (“cnau pistasio Iranaidd”) means —

(a)

pistachios falling within CN code 0802 50 00; and

(b)

roasted pistachios falling within CN code 2008 19 13 or code 2008 19 93,

and any products derived from such pistachios or roasted pistachios originating in, or consigned from, Iran;

[F2 “Directive 98/53/EC” (“Cyfarwyddeb 98/53/EC”) means Commission Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs as last amended by Commission Directive 2004/43/EC;]

“food authority” (“awdurdod bwyd”) has the same meaning as in section 5(1A) and (3)(a) and (b) of the Food Safety Act 1990;

“free circulation” (“cylchrediad rhydd”) has the same meaning as in Article 23.2, as read with Article 24, of the Treaty establishing the European Community; and

“port health authority” (“awdurdod iechyd porthladd”) means in relation to any port health district constituted by order under section 2(3) of the Public Health (Control of Disease) Act 1984 M5 , a port health authority for that district constituted by order under section 2(4) of that Act.

(2) Any term used in the definition of “Iranian pistachios” in paragraph (1) has the same meaning as in the Commission Decision.

Textual Amendments

F1 Words in reg. 2(1) substituted (10.2.2005) by The Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) (Amendment) Regulations 2005 (S.I. 2005/257), regs. 1, 2(2)(a)

F2 Words in reg. 2(1) substituted (10.2.2005) by The Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) (Amendment) Regulations 2005 (S.I. 2005/257), regs. 1, 2(2)(b)

Marginal Citations

M3 1990 c. 16.

M4 OJ No. L256, 7.9.87, p.1.

M5 1984 c. 22.

Prohibition on import E+W

3.— [F3 (1) Subject to paragraph (3), no person is to import into Wales any Iranian pistachios unless —

(a) the conditions specified in Article 1.1, 3, 5 and (so far as applicable at the point of import) 7 of the Commission Decision are satisfied in relation to those pistachios; and

(b) the costs resulting from sampling, analysis, storage and issuing of accompanying official documents and of copies of health certificates and accompanying documents pursuant to Article 1.4 to 7 of the Commission Decision have been met.]

(2) Subject to paragraph (3), no person shall import into Wales any Iranian pistachios, except through a point of entry listed in Annex II to the Commission Decision.

(3) Neither paragraph (1) nor paragraph (2) shall be taken to prohibit the import into Wales from a member State of any Iranian pistachios which are in free circulation in that State.

(4) Any person who knowingly contravenes paragraph (1) or (2) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.

Textual Amendments

F3 Reg. 3(1) substituted (10.2.2005) by The Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) (Amendment) Regulations 2005 (S.I. 2005/257), regs. 1, 2(3)

Enforcement E+W

4.—(1) Subject to paragraph (2), it shall be the duty of each port health authority to execute and enforce these Regulations within its district.

(2) In relation to any place which is not situated in the district of a port health authority, these Regulations shall be executed and enforced by the food authority for the area in which that place is situated.

(3) For the purposes of the exercise of the duty referred to in paragraph (1) or, as the case may be, (2), an authorised officer of the authority concerned shall —

(a) ensure that the requirements referred to in paragraph (4) are adhered to; and

(b) have the same powers of entry as are bestowed on an authorised officer of an enforcement authority by section 32 of the Act for purposes connected with the Act or Regulations or Orders made under the Act.

[F4 (4) The requirements are those specified in —

(a) Article 1.4 of the Commission Decision (which is concerned with documentary checks relating to consignments of Iranian pistachios);

(b) Article 1.5 and 1.6 of that Decision (which is concerned with the sampling and analysis of such consignments), other than the requirement under Article 1.5 to supply the Commission with specified information; and

(c) Article 1.7 of that Decision (which is concerned with the case where consignments are split).]

(5) Each port health authority and food authority shall give such assistance and information to the National Assembly for Wales and the Food Standards Agency as they may reasonably request in connection with the execution and enforcement of these Regulations.

Textual Amendments

F4 Reg. 4(4) substituted (10.2.2005) by The Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) (Amendment) Regulations 2005 (S.I. 2005/257), regs. 1, 2(4)

Application of various provisions of the Food Safety Act 1990 and sampling and analysis E+W

5.—(1) The following provisions of the Act shall apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part thereof shall be construed as a reference to these Regulations —

(a) section 20 (offences due to fault of another person);

(b) section 33(1) (obstruction etc. of officers);

(c) section 33(2), with the modification that the reference to “any such requirement as is mentioned in subsection (1)(b) above” shall be deemed to be a reference to any such requirement as is mentioned in section 33(1)(b) as applied by sub-paragraph (b);

(d) section 35(1) (punishment of offences), in so far as it relates to offences under section 33(1) as applied by sub-paragraph (b);

(e) section 35(2) and (3), in so far as it relates to offences under section 33(2) as applied by sub-paragraph (c);

(f) section 36 (offences by bodies corporate); and

(g) section 44 (protection of officers acting in good faith).

(2) Section 29 of the Act (procurement of samples) shall apply for the purposes of these Regulations with the modifications that —

(a) for the words “an enforcement authority” there shall be substituted the words “ ;a food authority or as the case may be a port health authority ”;

(b) for subsection (b)(ii) there shall be substituted the following provision —

“(ii) is found by him at any premises which he is authorised to enter by virtue of regulation 4(3)(b) of the Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) Regulations 2003”;

(c) the power to take samples under subsections (b) and (d) shall be limited to the taking of samples in accordance with the methods of taking samples described or referred to in Annex I to Directive 98/53/EC;

(d) subsection (c) shall be omitted; and

(e) for the words “any of the provisions of this Act or of regulations or orders made under it” in subsection (d) there shall be substituted the words “ ;the Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) Regulations 2003 ”.

(3) Where, pursuant to section 29(b) of the Act as applied for the purposes of these Regulations by paragraph (2), an authorised officer has taken a sample of any Iranian pistachios, that officer shall ensure that —

(a) the sample is prepared in accordance with —

(i) paragraphs 1.1, 2 and 3 of Annex II to Directive 98/53/EC, and

(ii) in the case of whole nuts, paragraph 1.2 of that Annex;

(b) an analysis of the sample is carried out at a laboratory which complies with Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs M6 ;

(c) that analysis is carried out as soon as practicable by a suitably qualified analyst in accordance with methods of analysis which —

(i) so far as practicable, comply with paragraphs 1 and 2 of the Annex to Council Directive 85/591/EEC concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption M7 , and

(ii) meet the criteria specified in paragraph 4.3 of Annex II to Directive 98/53/EC as read with the notes thereto; and

(d) the reporting of the result of that analysis —

(i) makes use of the definitions in paragraph 4.1 of Annex II to Directive 98/53/EC, and

(ii) is in accordance with paragraph 4.4 of that Annex.

(4) Before an analyst agrees to analyse a sample in accordance with paragraph (3)(c) that analyst may demand the payment in advance of such reasonable fee as he or she may require.

(5) An analyst who has analysed a sample in accordance with paragraph (3)(c) shall give to the person by whom it was submitted a certificate which shall both specify the result of the analysis and be signed by the analyst.

(6) In any proceedings under these Regulations, the production by one of the parties of —

(a) a document purporting to be a certificate given by an analyst under paragraph (5); or

(b) a document supplied to him by the other party as being a copy of such a certificate,

shall be sufficient evidence of the facts stated in it unless, in a case falling within sub-paragraph (a), the other party requires that the analyst shall be called as a witness.

(7) Where a sample procured under section 29 of the Act as applied for the purposes of these Regulations by paragraph (2) has been analysed in accordance with paragraph (3)(b) and (c), the owner shall be entitled on request to be supplied with a copy of the certificate of analysis by the authority which, by virtue of regulation 4(1) or (2), has the duty of enforcing them.

(8) Nothing in paragraph (3)(c) shall be taken as preventing an analysis being made by a person acting under the analyst’s direction.

Marginal Citations

M6 OJ No. L290, 24.11.93, p.14.

M7 OJ No. L372, 31.12.85, p.50.

Re-dispatch or destruction of illegal imports E+W

[F5 6.— (1) If on an inspection or examination of any Iranian pistachios it appears to an authorised officer of a port health authority or as the case may be food authority that they have been imported in contravention of paragraph (1) or (2) of regulation 3 he or she may after appropriate consultation with a person appearing to him or her to be the importer of the pistachios serve on that person a notice requiring —

(a) the re-dispatch of the pistachios outside the European Community within such reasonable period as is specified in the notice if all costs related to official measures taken in respect of those pistachios and identified in that notice have been met; or

(b) if —

(i) such re-dispatch would in his or her opinion involve serious risks to human health, or

(ii) such costs have not been met,

the destruction of the pistachios within such reasonable period as is specified in the notice.

(2) If a notice has been served under sub-paragraph (a) of paragraph (1) and the pistachios concerned have not been re-dispatched outside the European Community within the period specified in the notice, an authorised officer of the port health authority or the food authority whose authorised officer served it may after appropriate consultation with the person appearing to him or her to be the importer of the pistachios serve on that person a notice requiring the destruction of the pistachios within such reasonable period as is specified in the notice.

(3) A notice served under paragraph (1) or (2) is to state —

(a) the right of appeal to a magistrates' court; and

(b) the period within which such an appeal may be brought.

(4) Any person who is aggrieved by a decision of an authorised officer to serve a notice under paragraph (1) or (2) may appeal to a magistrates' court, which is to determine whether the notice should be upheld or set aside.

(5) The period within which such an appeal as is mentioned in paragraph (4) may be brought is 6 days from the date on which the notice was served exclusive of Saturdays, Sundays and Public Holidays and the making of the complaint is deemed for the purpose of this paragraph to be the bringing of the appeal.

(6) The procedure on an appeal to a magistrates' court under paragraph (4) is to be by way of complaint for an order and the Magistrates' Court Act 1980 applies to the proceedings.

(7) If the court allows an appeal brought under paragraph (4) the authority concerned is to compensate the owner of the Iranian pistachios concerned for any depreciation in their value resulting from the action taken by the authorised officer.

(8) Any disputed question as to the right to or the amount of any compensation payable under paragraph (7) is to be determined by arbitration.

(9) Any person who breaches the terms of a notice served under paragraph (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.]

Textual Amendments

F5 Reg. 6 substituted (10.2.2005) by The Food (Pistachios from Iran) (Emergency Control) (Wales) (No.2) (Amendment) Regulations 2005 (S.I. 2005/257), regs. 1, 2(5)

Revocation of the Food (Pistachios from Iran) (Emergency Control) Order 1997, The Food (Pistachios from Iran) (Emergency Control) (Amendment) Order 1997 and the Food (Pistachios from Iran) (Emergency Control) (Wales) Regulations 2003 E+W

7.  F6 ... the Food (Pistachios from Iran) (Emergency Control) (Wales) Regulations 2003 M8 are revoked so far as they apply to Wales.

Textual Amendments

F6 Words in reg. 7 omitted (8.2.2004) by virtue of The Food (Emergency Control) (Miscellaneous Amendments) (Wales) Regulations 2004 (S.I. 2004/245), regs. 1(1), 3(4)

Marginal Citations

M8 S.I.2003/1119 (W.150).

M9 Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998

Jane Hutt

Minister for Health and Social Services

Marginal Citations

M9 1998 c. 38.

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which apply in relation to Wales only, revoke and re-enact with changes the Food (Pistachios from Iran) (Emergency Control) Order 1997 (S.I. 1997/2238 (the 1997 Order), as amended by S.I.1997/3046), which applies to the whole of Great Britain and the Food (Pistachios from Iran) (Emergency Control) Regulations 2003 (S.I. 2003/1119 (W.150)) (the 2003 Order) which applies to Wales only. The revocation is effected by regulation 7.

The 1997 Order implemented Commission Decision 97/613/EC on the temporary suspension of imports of pistachios and certain products derived from pistachios originating in or consigned from Iran (OJ No. L248, 11.9.97, p.33), subsequently repealed and replaced with Commission Decision 1997/830/EC (OJ No. L343, 13.12.97, p. 30).

The 2003 Order revoked and re-enacted with changes the 1997 Order, as amended. The 2003 Order implemented Commission Decision 1997/830/EC repealing Commission Decision 97/613/EC and imposing special conditions on the import of pistachios and certain products derived from pistachios originating in, or consigned from Iran (OJ No. L343, 13.12.97, p.30), as amended by Commission Decision 1998/400/EC (OJ No. L176, 20.6.98, p.37), Commission Decision 2000/238/EC (OJ No. L75, 24.3.2000, p.59) and Commission Decision 2002/1041/EC. The categories of products which are subject to those conditions are specified in Article 2 of Commission Decision 1997/830/EC as so amended.

The 2003 Order is being revoked and re-enacted with changes as it was made in error before Commission Decision 2002/1041/EC was adopted.

These Regulations implement Commission Decision 1997/830/EC repealing Commission Decision 97/613/EC and imposing special conditions on the import of pistachios and certain products derived from pistachios originating in, or consigned from Iran (OJ No. L343, 13.12.1997, p.30) as amended by Commission Decision 1998/400/EC (OJ No. L176, 20.6.98, p.37), 2000/238/EC (OJ No. L75, 24.3.2000, p.59) and 2003/551/EC (OJ No. L187, 26.7.2003, p.43). The categories of products which are subject to those conditions are specified in Article 2(1) of Commission Decision 1997/830/EC as so amended.

These Regulations —

(a)

prohibit the importation of “Iranian pistachios” (defined in regulation 2(1)), except where —

(i)

they are accompanied by an Iranian Government health certificate and the results of official sampling and analysis, the importation takes place only through a specified point of entry and each consignment is identified with a code corresponding with that specified on the health certificate and the accompanying report containing the sampling and analysis results,

(ii)

they are subject to specified documentary checks, and

(iii)

each consignment is subjected to analysis of aflatoxin B1 and total aflatoxin levels before release onto the market (regulation 3);

(b)

provide for their enforcement (regulation 4);

(c)

apply with modifications certain provisions of the Food Safety Act 1990 for the purposes of the Regulations and provide for sampling and analysis (regulation 5); and

(d)

provide for the re-dispatch or destruction of illegal imports of Iranian pistachios (regulation 6).

The principal changes effected by these Regulations are that —

(a)

the previous requirement that each consignment of Iranian pistachios be subjected to systematic sampling and analysis in order to ensure compliance with Commission Decision 1997/830/EC is modified by providing that —

(i)

a sample of each consignment must be analysed for aflatoxin and total aflatoxin before release onto the market from the point of entry into the Community,

(ii)

the period of detention should not exceed 15 working days, and

(iii)

an authorised officer of the relevant enforcement authority must issue a notice in writing stating that sampling has taken place and the results of the analysis of the sample; and

(b)

an authorised officer of the relevant enforcement authority is empowered (subject to a right of appeal to a magistrates' court) to issue a notice ordering the re-dispatch of illegal imports of Iranian pistachios.

The CN codes referred to in the definition of “Iranian pistachios” are the code numbers of the combined nomenclature established by Council Regulation 2658/87 on the tariff and statistical nomenclature and on the Customs tariff (OJ No. L256, 7.9.87, p.1).

No regulatory appraisal has been prepared in relation to these Regulations.